Madhya Pradesh High Court
Ranjeet Adopted vs Decd. Smt. Bhaklibai on 5 December, 2023
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
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IN THE HIGH COURT OF MADHYA
PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 5th OF DECEMBER, 2023
SECOND APPEAL No. 1751 of 2021
BETWEEN:-
RANJEET ADOPTED S/O KHUMCHANDRA HUKIYA BHIL, AGED ABOUT
35 YEARS, OCCUPATION: AGRICULTURE GORIYA KHADAN TEH.
THANDLA, DISTT.-JHABUA (MADHYA PRADESH)
.....APPELLANT
(SHRI PADMNABH SAXENA, LEARNED COUNSEL FOR THE APPELLANT)
AND
1. DECD. SMT. BHAKLIBAI W/O BHUMCHANDRA GORIYA KHADAN
TEH. THANDLA DISTT.-JHABUA (MADHYA PRADESH)
2. PRABHU S/O MADIYA BHIL, AGED ABOUT 55 YEARS, GORIYA
KHADAN TEH. THANDLA DISTT.-JHABUA (MADHYA PRADESH)
3. THAVARIYA S/O MADIYA BHIL, AGED ABOUT 45 YEARS, GORIYA
KHADAN, TEH THANDLA DIST JHABUA (MADHYA PRADESH)
JOGA S/O MADIYA BHIL, AGED ABOUT 55 YEARS, GORIYA KHADAN,
4.
TEH THANDLA DIST JHABUA (MADHYA PRADESH)
5. KALSINGH S/O KIDIYA BHIL, AGED ABOUT 52 YEARS, GORIYA
KHADAN, TEH THANDLA DIST JHABUA (MADHYA PRADESH)
6. HAVLA S/O KIDIYA BHIL, AGED ABOUT 42 YEARS, GORIYA KHADAN,
TEH THANDLA DIST JHABUA (MADHYA PRADESH)
7. BHURIYA S/O KIDIYA BHIL, AGED ABOUT 37 YEARS, OCCUPATION:
AGRICULTURE GORIYA KHADAN, TEH THANDLA DIST JHABUA
(MADHYA PRADESH)
.....RESPONDENTS
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This appeal coming on for admission this day, the court passed
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the following:
ORDER
This second appeal has been filed by the appellant/plaintiff being
aggrieved by judgment and decree dated 06.09.2021 passed by Principal
District Judge, Jhabua, District-Jhabua in RCA No.31-A/2017 whereby the
first appellate court has upheld the decree and judgment dated 10.03.2017
passed by Civil Judge, Class-II, Thandla, Distt.-Jhabua in RCS
No.13A/2015.
02. Brief facts of the case are that appellant/plaintiff filed a suit for
declaration of title and injunction etc. on the ground that he is adopted son
of Khoomchand and Khoomchand had adopted him as per
customs/traditions.
03. Learned trial court vide judgment dated 10.03.2017 passed in RCS
No.13A/2015 dismissed the suit filed by plaintiff and appeal filed by the
plaintiff was also dismissed by Principal District Judge, Jhabua vide
judgment dated 06.09.2021 passed in RCA No.31-A/2017.
04. Learned counsel for the appellant, after referring to testimonies of
PW-1 and PW-2, especially para 4 and 5 of PW-2 as well as testimony of
DW-2, submits that from oral testimony, factum of adoption is clearly
established and customs relating to adoption are also proved. Further, from
above evidence it is also established that written adoption is not required
at all and there can be oral adoption also. Defendant No.1 filed written
statement but never appeared in witness box to deny the factum of
adoption. Learned courts below have wrongly held that on account of non-
examination of biological father of appellant/plaintiff and non-availability
of written adoption, factum of adoption is not proved. Further after
referring to para 4 and 5 of PW-2, learned counsel for the appellant
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submits that witness has not been cross-examined with respect to facts
mentioned in para 4 and 5. Thus, from evidence on record, factum of
adoption is clearly established and learned courts below have not properly
appreciated the facts on record. Hence, substantial question of law as
mentioned in the appeal memo arise for determination and appeal be
admitted for final hearing.
05. I have heard learned counsel for the parties and perused the records
of Courts below.
06. It is apparent from records of Courts below that it is a case of
concurrent findings of facts i.e. trial court has dismissed the suit filed by
plaintiff and appeal filed by plaintiff/appellant has been dismissed.
07. Therefore, question arises as to when this Court can interfere with
the findings of facts arrived at by the Courts below. In this connection, I
would like to refer to the law laid down by the Hon'ble Apex Court in the
case of Chandrabhan (Deceased) through Lrs. And Others vs. Saraswati
and Others reported in AIR 2022 SC 4601, wherein Hon'ble Apex Court
in para 33(iii) has held as under:-
"33 (iii) The general rule is that the High Court will not interfere with
findings of facts arrived at by the courts below. But it is not an
absolute rule. Some of the well - recognized exceptions are where (i)
the courts below have ignored material evidence or acted on no
evidence; (ii) the courts have drawn wrong inferences from proved
facts by applying the law erroneously; or (iii) the courts have wrongly
cast the burden of proof. When we refer to "decision" based on no
evidence", it not only refers to cases where there is a total dearth of
evidence, but also refers to any case, where the evidence, taken as a
whole, is not reasonably capable of supporting the finding".
08. Similarly in the case of Gurnam Singh (Dead) by legal
representatives and Others vs. Lehna Singh (Dead) by legal
representatives, Hon'ble Apex Court has held as under:-
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"13.1.......However, in Second Appeal under Section 100 of the
CPC, the High Court, by impugned judgment and order has
interfered with the Judgment and Decree passed by the First
Appellate Court. While interfering with the judgment and order
passed by the first Appellate Court, it appears that while
upsetting the judgment and decree passed by the First Appellate
Court, the High Court has again appreciated the entire evidence
on record, which in exercise of powers under Section 100 CPC
is not permissible. While passing the impugned judgment and
order, it appears that High Court has not at all appreciated the
fact that the High Court was deciding the Second Appeal under
Section 100 of the CPC and not first appeal under Section 96 of
the CPC. As per the law laid down by this Court in a catena of
decisions, the jurisdiction of High Court to entertain second
appeal under Section 100 CPC after the 1976 Amendment, is
confined only when the second appeal involves a substantial
question of law. The existence of 'a substantial question of law'
is a sine qua non for the exercise of the jurisdiction under
Section 100 of the CPC. As observed and held by this Court in
the case of Kondiba Dagadu Kadam (Supra), in a second appeal
under Section 100 of the CPC, the High Court cannot substitute
its own opinion for that of the First Appellate Court, unless it
finds that the conclusions drawn by the lower Court were
erroneous being:
(i) Contrary to the mandatory provisions of the applicable law;
OR
(ii) Contrary to the law as pronounced by the Apex Court; OR
(iii) Based on inadmissible evidence or no evidence.
It is further observed by this Court in the aforesaid decision that if
First Appellate Court has exercised its discretion in a judicial
manner, its decision cannot be recorded as suffering from an error
either of law or of procedure requiring interference in second
appeal. It is further observed that the Trial Court could have
decided differently is not a question of law justifying interference
in second appeal".
09. In this connection, Ishwar Dass Jain (Dead) through LRs vs.
Sohan Lal (Dead) by LRs reported in (2000) 1 Supreme Court Cases 434
may also be referred to. Paras 11 and 12 of the said judgment is relevant
and is under:-
"11. There are two situations in which interference with
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findings of fact is permissible. The first one is when material
or relevant evidence is not considered which, if considered
would have led to an opposite conclusion. This principle has
been laid down in a series of judgments of this Court in
relation to section 100 CPC after the 1976 amendment. In
Dilbagrai Punjabi vs. Sharad Chandra [1988 Supple. SCC
710], while dealing with a Second Appeal of 1978 decided by
the Madhya Pradesh High Court on 20.8.81, L.M.Sharma, J.
(as he then was) observed that "The Court (the first appellate
Court) is under a duty to examine the entire relevant evidence
on record and if it refuses to consider important evidence
having direct bearing on the disputed issue and the error
which arises as of a magnitude that it gives birth to a
substantial question of law, the High Court is fully authorised
to set aside the finding. This is the situation in the present
case."
In that case, an admission by the defendant-tenant in the
reply notice in regard to the plaintiff's title and the description
of the plaintiff as `owner' of the property signed by the
defendant were not considered by the first appellate Court
while holding that the plaintiff had not proved his title. The
High Court interfered with the finding on the ground of non-
consideration of vital evidence and this Court affirmed the
said decision. That was upheld. In Jagdish Singh vs. Nathu
Singh [1992 (1) SCC 647], with reference to a Second
Appeal of 1978 disposed of on 5.4.1991. Venkatachaliah, J.
(as he then was) held:
"where the findings by the Court of facts is vitiated by non-
consideration of relevant evidence or by an essentially
erroneous approach to the matter, the High Court is not
precluded from recording proper findings."
Again in Sundra Naicka Vadiyar vs. Ramaswami Ayyar [1995
Suppl. (4) SCC 534], it was held that where certain vital
documents for deciding the question of possession were
ignored - such as a compromise, an order of the revenue
Court - reliance on oral evidence was unjustified. In yet
another case in Mehrunissa vs. Visham Kumari [1998 (2)
SCC 295] arising out of Second appeal of 1988 decided on
15.1.1996, it was held by Venkataswami, J. that a finding
arrived at by ignoring the second notice issued by the
landlady and without noticing that the suit was not based on
earlier notices, was vitiated and the High Court could
interfere with such a finding. This was in Second Appeal of
1988 decided on 15.1.1996.
12. The second situation in which interference with findings
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of fact is permissible is where a finding has been arrived at
by the appellate Court by placing reliance on inadmissible
evidence which if it was omitted, an opposite conclusion was
possible. In Sri Chand Gupta vs. Gulzar Singh [1992 (1) SCC
143], it was held that the High Court was right in interfering
in Second Appeal where the lower appellate Court relied
upon an admission of a third party treating it as binding on
the defendant. The admission was inadmissible as against the
defendant. This was also a Second Appeal of 1981 disposed
of on 24.9.1985".
10. Admittedly, in the instant case, appellant/plaintiff has not examined
his biological father and no explanation has been furnished for the same.
Further, evidence adduced by appellant/plaintiff reveals that
appellant/plaintiff has not filed any government document in which
plaintiff/appellant is mentioned as son of Khoomchand. There is on record
Ex.P-16's mark-sheet wherein Hukya is mentioned as appellant/plaintiff's
father. In this connection, it is also important that during submissions,
learned counsel for the appellant submitted that at the time of adoption,
appellant was in class 8th, still no document showing Khoomchand as
appellant's father has been filed and no explanation has been furnished for
the same. Therefore, in view of above, in this Court's considered opinion,
from evidence on record, it is not proved that Khoomchand had adopted
the appellant.
11. If pleadings of the parties and evidence adduced by the parties and
the impugned judgments passed by the Courts below are considered in
light of the above legal principles/legal provisions reiterated in aforesaid
judgments, then, in this Court's considered opinion, the findings of facts
concurrently recorded by the Courts below are not liable to be interfered
with in the instant case and it cannot be said that Courts below have
ignored any material evidence or has acted on no evidence or Courts have
drawn wrong inferences from the proved facts etc. Further, it cannot be
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said that evidence taken as a whole, is not reasonably capable of
supporting the findings. It can also be not said that the findings of Courts
below are based on inadmissible evidence.
12. A perusal of the impugned judgments and decree passed by the
Courts below reveal that they are well reasoned and have been passed after
due consideration of oral as well as documentary evidence on record.
Learned counsel for the appellant/plaintiff has failed to show that how the
findings of facts recorded by the Courts below are illegal, perverse and
based on no evidence etc. The learned Courts below have legally and
rightly dealt with the issues involved in the matter and have recorded
correct findings of facts.
13. For the reasons aforesaid, I find no merit in the instant second
appeal. Concurrent findings recorded by the Courts below in favour of
defendant are fully justified by the evidence on record. Concurrent
findings recorded by the Courts below are not based on misreading or mis-
appreciation of evidence nor it is shown to be illegal or perverse in any
manner so as to call for interference in second appeal. No question of law,
much less substantial question of law, arises for adjudication in the instant
second appeal. Accordingly, the appeal is dismissed in limine.
14. A copy of this order along with record be sent back to the courts
below for information and its compliance.
(ACHAL KUMAR PALIWAL )
JUDGE
N.R.
Date: 2023.12.07 18:31:17 +05'30'
